Appeal, No. 136, Oct. T., 1962, from judgment of Court of Quarter Sessions of Lehigh County, Sept. T., 1960, No. 43, in case of Commonwealth v. Agostino Rosario. Judgment reversed.
John E. Backenstoe, for appellant.
Wilbur C. Creveling, Jr., Assistant District Attorney, with him George J. Joseph, District Attorney, for Commonwealth, appellee.
Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.
[ 198 Pa. Super. Page 178]
Following a verdict of guilty on the charge of incest and rape, the defendant asked for a new trial upon the ground that the right of peremptory challenge was effectively denied him by certain misstatements of two jurors upon their voir dire.
The morning after the jury had returned its verdict, the defendant's counsel made a statement to the court that he had questioned the prospective jurors as to whether they were related to any law enforcement officer and each answered in the negative. He stated that he had questioned the first twelve as a body and had questioned individually each juror called thereafter, that two of the jurors, who were not among the first twelve called but were eventually chosen, were parents of troopers of the Pennsylvania State Police, and that their denials of such relationship on voir dire were mis-statements which prevented him from properly exercising
[ 198 Pa. Super. Page 179]
the defendant's right of peremptory challenge. He further stated that he had not learned these facts until after the verdict had been rendered.
The district attorney replied that, although he remembered that the particular question was asked of the first twelve jurors, he did not have a recollection that it was asked of the two in question, both of whom were called subsequent to the first twelve.
The trial judge, in his opinion, denying the defendant's motion, assumed that each prospective juror had been asked whether he or she was related to a law enforcement officer and that the two jurors in question either failed to answer or answered in the negative. He also assumed that defense counsel did not learn the true facts until after the rendition of the verdict. However, he refused to grant a new trial because there was no evidence (1) that the two jurors intentionally misled or deceived counsel for the defendant or (2) that their presence on the jury in any way affected the verdict. He did this in reliance upon the cases of Traviss v. Commonwealth, 106 Pa. 597 (1884); Romesberg v. Merrill, 99 Pa. Superior Ct. 197 (1930); and Commonwealth v. Kopitsko, 177 Pa. Superior Ct. 161, 110 A.2d 745 (1955).
However, in Traviss v. Commonwealth, supra, the relationship of the juror to the victim of the crime was not known to the juror at the time of the trial and, as the lower court said: "His judgment could not have been affected, even insensibly, by a circumstance ...